Brown v. Quincy, Omaha And Kansas City R. Company
| Decision Date | 05 November 1917 |
| Parties | DEE BROWN, Respondent, v. QUINCY, OMAHA and KANSAS CITY RAILROAD COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. G. W. Wanamaker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
J. G Trimble and Hall & Hall for appellant.
Platt Hubble & George H. Hubble for respondent.
Plaintiff brought two actions against defendant. The first consists of a petition in six counts; the second, a petition in four counts. These petitions were consolidated and tried as one action. All the causes of action except the first were assigned to plaintiff. The judgment was for plaintiff on all the counts.
The first count is for killing plaintiff's cow. This embraces two causes of action, one for negligently failing to maintain a proper and reasonably safe cattle guard as required by statute, which "thereby caused the killing of one red, white-faced cow," whereby he was damaged in the sum of sixty ($ 60) dollars. The second cause is at common law and alleged that the "cow walked and strayed onto the defendant's track where the same was not fenced and defendant, by its servants, negligently and carelessly ran its engine and cars over said cow, and negligently and carelessly struck and killed said cow," whereby he was damaged in the sum of sixty dollars.
The remaining five counts of the first petition and the four counts of the second petitions are for overflows, or backing up of water onto the lots of plaintiff's assignor; one count for each year from 1907 to 1915 inclusive.
It seems that plaintiff's assignor (who is his father) owned two lots in the village of Brimson in Grundy county. The courts are founded on the allegations that there runs through the lots a small branch (dry except after rains) which is a natural drainage for a small district in that vicinity. But that defendant so constructed its roadbed and embankment as to dam the water below the lots and cause it to "back up" and overflow the lots, doing damage to grass, chickens, eggs, etc. The allegations are that defendant negligently failed to put in and maintain openings through and across its right of way and roadbed so that there would be a sufficient outlet and drain to carry off the water of the branch and other surface water, but left the same so as to be dammed up by such railroad bed. That but for such negligent failure the surface water and that collected in the branch would have found its natural flow without injury to plaintiff's assignor as it had before defendant's road was built. Each overflow count contains a proper allegation of an assignment to plaintiff.
All of the overflow counts are based on section 3150, Revised Statutes 1909, though only three of them ask judgment for the two hundred dollars penalty provided for in such statute, and plaintiff's instructions confined his recovery to damages without the addition of the penalty of two hundred ($ 200) dollars allowed by that statute.
The objection that the first count for killing the cow is defective in that it joins both statutory negligence as to the cattle guard and common-law negligence must be overruled. [White v. Railroad, 202 Mo. 539, 560, 561.] We are of the opinion that there was evidence under that count upon which the verdict of the jury may be supported.
The action as to the overflow is conceded to be brought under the statute. That statute makes it the duty of the railway company to provide drains along the sides of its tracks and suitable openings through the roadbed to afford sufficient outlet for surface waters wherever the drainage has been obstructed by the construction of the road. The statute provides that any railway company "failing to comply with the provisions of this section shall incur a penalty not to exceed two hundred dollars and be liable for all damages done by said neglect of duty, and each neglect of duty shall be a separate offense."
The cause of action accrued on all the counts within five years before the institution of the action, but three of them accrued more than three years before bringing the action. Defendant pleaded against the latter the Statute of Limitations (section 1890, R. S. 1909) barring certain actions within three years. It reads: ". . . . Second, an action upon a statute for a penalty or forfeiture, where the action is given to the party aggrieved, or to such party and the State." Defendant's claim is that the statute is penal.
Our opinion is that the statute is both penal and remedial. Each action is separately provided for. The remedial portion is for the sole benefit of the party aggrieved, and, as has been decided by the Supreme Court (Skinner v. Railroad, 254 Mo. 228) the penal part for the School fund. There may be a remedial clause and a penal clause in the same section of a statute, and in such case each may receive the construction which its class may demand. [Endlich on Interpretation of Statutes, sec. 332; 2 Lewis' Sutherland Statutory Construction, sec. 532; Huntington v. Attrill, 146 U.S. 657, 667, 36 L.Ed. 1123, 13 S.Ct. 224.] So the appropriate part of the Statute of Limitations should be applied to each clause. The three year statute above quoted has been held to apply to an action for double damages against a railroad for killing stock. [Revelle v. Railroad, 74 Mo. 438.] But that was on the ground that the statute in allowing double damages was penal, while we have seen that that part of the section upon which this action is based is only remedial. There is another part of the section imposing double damages for injury resulting from failure to clean, burn and remove from the right of way, twice a year, all dead vegetation, so as to prevent spread of fires; but that part is distinct from the duty and liability as to drainage, and a failure to discharge the latter duty does not authorize double damages.
A part of defendant's argument is based on McFarland v Railroad, 175 Mo. 422, wherein it is held that the penalty of two hundred dollars prescribed in this statute, as well as the damages, is recoverable by and payable to the injured party; and hence it is claimed that since both damages and the penalty go to the party aggrieved, as in stock cases where no...
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